Unlocking new cell phones to become illegal on Saturday

Switching carriers without permission could run afoul of the DMCA.

An edict from the Library of Congress is about to make phone unlocking illegal for the first time in 6 years. The decision, issued in October, is part of a triennial process whereby the Librarian of Congress hands out exemptions from the Digital Millennium Copyright Act.

The two previous batches of regulations, issued in 2006 and 2010, respectively, granted users permission to unlock their phones in order to switch wireless carriers. But in the wake of a 2010 decision holding that software is licensed rather than sold, the Library reversed itself and declared phone unlocking illegal once again. The Librarian was also influenced by claims that there are more unlocked phones on the market than there were three years ago.

The new ruling comes with a grandfather clause. It will continue to be legal to unlock phones purchased before Saturday, January 26. But if you unlock a phone purchased after that date you could be liable under the Digital Millennium Copyright Act, which prohibits the "circumvention" of copy protection schemes.

Obviously, this isn't what Congress had in mind when it passed the DMCA as an anti-piracy measure 15 years ago. Legislators intended for the law to bolster copy-protection schemes like those on Blu-Ray discs and iTunes content. But ever since it was enacted, manufacturers have been trying to use the law to lock down other types of media and devices. The courts have rejected efforts by the manufacturers of printers and garage door openers to use the DMCA to lock down their products. But Blizzard was more successful in using the DMCA to shut down unauthorized World of Warcraft bots. As far as we know, no one has actually been sued under the DMCA for unlocking their phone, so it's not certain how the courts would rule on the question.

It's important to note that unlocking a phone in order to take it to another carrier is different from jailbreaking it in order to install software not approved by the manufacturer. Jailbreaking is legal under the new rules—but only for phones, not tablets. And no, that doesn't make sense to us either.

116 Reader Comments

Over-broad measures are over-broad. This is why laws need to be specifically tailored to the actions they wish to prohibit, and this should be a warning against "blanket" measures, used to catch a range of illicit behavior.

"Obviously, this isn't what Congress had in mind when it passed the DMCA as an anti-piracy measure 15 years ago."

And lawmakers wonder why the populace gets up in arms everytime they write an inspecific and broad measure, bill, amendment, act, whatever. It's rarely used as intended, but is often exploited at the cost of the common man.

Makes me all the more glad that SOPA and PIPA got the axe, for whatever it's worth.

These are the people behind this movement. If you search the linked document for "unlock", you'll see all the relevant info only covers a few pages.

Among the CTIA's arguments are that all the large carriers have very liberal unlock policies, and consumers are easily able to get their devices unlocked this way.

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Overall, CTIA maintained that an exemption for unlocking is not necessary because ``the largest nationwide carriers * * * have liberal, publicly available unlocking policies,'' and because unlocked phones are ``freely available from third party providers--many at low prices.'' Nonetheless, CTIA indicated that its members did not object to a ``narrowly tailored and carefully limited exception'' to permit individual customers of wireless carriers to unlock phones for the purpose of switching networks.

Has this been the experience on those on ATT? I thought that the iphone especially was difficult to unlock, and they'd only grant a code after your contract was up.

I've been with Tmobile for a while, and they've always been happy to give me unlock codes, but I understand that this isn't common on other carriers.

It's truly amazing how draconian this country is becoming. And before someone chimes in about China or North Korea being worse, I mean draconian in comparison to the rights we are supposed to have and that our government/politicians love to trumpet on about. How is it right that a carrier can tell me what I can do with the device I just paid for, particularly if my contract has ended?

I wonder why this is ok in the tech industry when in any other industry this would entirely blow up in their face. Could you imagine Ford selling someone a car and after the car was paid off them saying "Ok but you still need to get gas from only BP stations and no one else if you try and pour gas from another station in there we can sue you"

I hate the coverage on this issue. Unlocking IS NOT ILLEGAL. Hacking a Phone to do so is illegal. You can still unlock your phone through your carrier. If your phone happens to have a generic unlock process like some recent Samsung phones you can still unlock it. Of course I don't know how they can say hacking your phone to jail break it is okay but not to unlock it. On the android side at least they generally can't safely root a phone with out unlocking it in the process as you've got to turn the baseband security off or you can end up with a bricked phone after a bad flash.

I think the most surprising part of this is how easy it was for me to unlock my phone (iPhone). After my contract expired, I filled out a form on Apple's website, performed a restore, and it was unlocked.

If the maker and the carrier give consent (presumably after some grace period, which in my case was 2 years), I'm surprised they're going to the bold measure of making it *completely* illegal.

There are tons and tons and tons of unlocked cell phones on sale everywhere, amazon, newegg, expansys, etc etc.So there's no issue, people who want unlocked will just go and buy unlocked, and this is legal and always will be legal.

Case closed.

Do you work for a wireless carrier? People want to be able to unlock their own phones that they've already purchased to use other SIM's when they travel overseas, or use multiple domestic carriers. If the phone has the capabilities, why buy another, when unlocking is a better solution?

Over-broad measures are over-broad. This is why laws need to be specifically tailored to the actions they wish to prohibit, and this should be a warning against "blanket" measures, used to catch a range of illicit behavior.

Lawmakers like broad, vague laws because they give the state far more power. They cherry-pick examples in order to get the law passed, knowing that they won't restrict themselves to those examples.

There are tons and tons and tons of unlocked cell phones on sale everywhere, amazon, newegg, expansys, etc etc.So there's no issue, people who want unlocked will just go and buy unlocked, and this is legal and always will be legal.

Case closed.

Do you work for a wireless carrier? People want to be able to unlock their own phones that they've already purchased to use other SIM's when they travel overseas, or use multiple domestic carriers. If the phone has the capabilities, why buy another, when unlocking is a better solution?

well, the carrier does subsidize the phone, so I do see the reasoning. If you wanted to "own" it you'd pay $600, not $100-200. Although I'd think the ETF should cover that.

Does "unlocking" mean rooting or does that mean moving it to another carrier?

Neither, on its own.

You can unlock without moving to another carrier but you'll have to unlock if you wish to do so. Rooting / jailbraking lets you install unauthorized software and sometimes (always?) you have to unlock in order to do so.

Something the LoC didn't consider is the scenario where sometimes the only practical way to restore a phone and put authorized software on it is to unlock it first so that it's "receptive" to whatever you put on it. I found this out when trying to resurrect an out of contract, no-service iPhone 3GS that iTunes wouldn't restore. All I wanted to do was turn it into an iPod touch, essentially. One quick jailbrake later and iTunes treated it as a normal iPhone.

The point is that now web sites pointing to software or instructions on how to unlock a phone can be shut down by ICE without due process.

The US Supreme Court would smack the ICE down pretty fast if it tried that. The ICE is totally in the wrong to seize domain names at all, but suppressing instructions is completely different from suppressing (perceived) copyright infringement.

I wonder why this is ok in the tech industry when in any other industry this would entirely blow up in their face.

Because giants like Apple and Microsoft can bank on legions of fans to defend it.

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Could you imagine Ford selling someone a car and after the car was paid off them saying "Ok but you still need to get gas from only BP stations and no one else if you try and pour gas from another station in there we can sue you"

And people would be livid. But with cellphones people get dismissive when people point out that walled gardens and carrier lock down create such ridiculous situations.

I wonder why this is ok in the tech industry when in any other industry this would entirely blow up in their face. Could you imagine Ford selling someone a car and after the car was paid off them saying "Ok but you still need to get gas from only BP stations and no one else if you try and pour gas from another station in there we can sue you"

Until the Magnuson-Moss Warranty Act of 1975, Title 1, ..101-112, 15 U.S.C. ..2301 et seq. prohibited the canceling of warranties due to the use of non-OEM parts, Ford could cancel your warranty the first time you failed to use a Ford specified product.

My point was that smart people buy unlocked and pick their carrier and payment plan carefully, and dumb people buy subsidized phones anyway, so what's the point in Librarian's decision?

Go back and read the articles and the decision itself. The explanations in the official documents are so contrived and the logic so painfully twisted it was hard to believe that the Librarian knew what they were talking about or even capable of evaluating the arguments other than defaulting in favor of not granting exceptions.

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Nothing is going to change with this Library decision, only a few tech pundits and geeks noticed, but you'll forget about it pretty soon.

That doesn't negate the fact that the decision, and the underlying law, have been, are, and will continue to be bad until repealed. But when the law is favored vocally by US carriers, Apple, Microsoft, and the entire entertainment industry, it's an uphill battle.

I think this is mainly using back-channels to unlock, like the ebay unlocks--anyone who can unlock your in-contract phone against the providers policy has to be doing it through an exploit. Someone doing it from inside, through a hack, or somehow. Like when a congressman gets a private jet ride someplace, then "reimburses" the provider of that jet ride.

I think the (temporary?) rise of MVNOs and small fries (t-mo in usa) will mean folks are increasingly opting for unlocked and unsubsidized phones.

Of note, I think that some of the MVNO phones are subsidized, even if without contract--if you buy a virgin or boost phone, it's "locked" to that provider (tried to take a virgin phone over to Ting and it didn't work). This is a tad insidious, because it grants the provider a "lifetime" reason to keep the phone locked up. The contract never expires, etc.

Has this been the experience on those on ATT? I thought that the iphone especially was difficult to unlock, and they'd only grant a code after your contract was up.

I didn't get any unlock codes for any of my Android devices from AT&T. They're even locking the bootloader (never mind root access) which makes it that much more frustrating and push device owners to even more novel and elaborate methods from suspicious sources.

the decision, and the underlying law, have been, are, and will continue to be bad until repealed

I know, but there so many bad and downright ugly state and federal laws in the US that no one enforces or cares about, that I don't pay attention to such a BS anymore. If you are a legal guy with EFF then this is your battlefield, otherwise you forget about it next day if not faster.

Betcha if people started cancelling smart phones en masse because of this, the rules would change in an instant. Better a jailbroken customer than none at all...

Like we could live without cell phones. And don't think they don't know that.

I live just fine without a cell phone. I do have a pocketable, non-locked down, mobile PC with WiFi and Skype, and that works fine for me. I could turn it into a cell phone by installing a SIM card, but in the 3+ years I've had it, I've never felt the need.

So, America, you don't have non-cap gigabit internet (hell, my current ISP gives 10 gigabits inside country, so when I add a torrent from local tracker, I hear disk thrashing in my RAID-Z array and I have a HD movie, lol) and you get phones from carriers with bloatware and amazing restrictions.

Does "unlocking" mean rooting or does that mean moving it to another carrier?

Neither, on its own.

You can unlock without moving to another carrier but you'll have to unlock if you wish to do so. Rooting / jailbraking lets you install unauthorized software and sometimes (always?) you have to unlock in order to do so.

No that's not right either.

To move to another carrier, you have to sim unlock the phone, so it can accept another carrier's sim card. To root the phone the easiest way, you have to unlock the bootloader... Unlocking the bootloader is not the same as sim unlocking the phone. You can have an unlocked bootloader with a rooted OS, but still be carrier locked.

Do you work for a wireless carrier? People want to be able to unlock their own phones that they've already purchased to use other SIM's when they travel overseas, or use multiple domestic carriers. If the phone has the capabilities, why buy another, when unlocking is a better solution?

No, I work for people with brains, and these people don't buy subsidized phones on a contract, 'cause what's the point in it? The carrier will always milk you heavily and you will lose quite a lot of money in the end, although that $199 iPhone looked such a nice deal initially.

My point was that smart people buy unlocked and pick their carrier and payment plan carefully, and dumb people buy subsidized phones anyway, so what's the point in Librarian's decision? It will prohibit dumb people to unlock their phones, so what? Dumb people wouldn't do that anyway. Hence I don't understand what the fuss is about. Smart guys will keep buying unlocked and dumb ones will keep falling for sweet sounding ads from carriers and those "$199" iPhone "deals".

Nothing is going to change with this Library decision, only a few tech pundits and geeks noticed, but they will forget about it pretty soon.

So what US carrier (besides T-Mobile, cause they suck where I live - don't even think they have a corporate store here) gives better rates for people that bring their own phones? In my market it is prepaid, AT&T, Verizon, or Sprint. Since none of them give discounts for bringing your own handset, why not take the subsidy? Why pay full price when it will only cost you more in the long run? Unless I am not understanding what you are saying, you don't make much sense calling me dumb because I did my research and picked the cheapest plan that worked for me and my family and I got a cheaper handset.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.